Daniel Oran - Oran's Dictionary of the Law

348 Oversubscription

value as precedent. 2. To reject an objection made during a trial. This is done by the judge.

Oversubscription A situation in which more orders for shares of stock exist than there are shares of stock to fill the orders.

Overt Open; clear. For example, an overt act in criminal law is more than mere preparation to do something criminal; it is at least the first step of actually attempting the crime. The overt act itself need not be unlawful to be the first step in such crimes as treason and criminal conspiracy, or in an “attempt crime” such as attempted murder.

Over-the-counter 1. Describes securities, such as stocks and bonds, sold directly from broker to broker or broker to customer rather than through an exchange. 2. Describes a drug that may be sold without a prescription.

Owelty 1. A court-ordered payment to equalize an unequal division of land. 2. Money paid to equalize an exchange of land with different values. See also boot.

Owner A general term for the person who holds the legal or “paper” title to property; for the person who has a right to property no matter what the “papers” say; or for several other shades of control over, or rights to benefit from, property.

Owners’ equity statement See statement.

Oyer and terminer (French) “Hear and decide.” Describes certain higher state criminal courts. [pronounce: oy-yay and term-i-nay]

Oyez (Law French) “Hear ye.” The word cried out by a court official in some courtrooms to get attention at the start of a court session. [pronounce: oy-yay]

350 P.O.D.

P.O.D. 1. “Payable on death.” Describes a bank or other account payable to a person (or a group of persons) and, on that person’s death, payable to someone else. 2. Pay(able) on delivery.

P.P.O. Preferred Provider Organization. A group health insurance plan that gives discounts for using certain doctors, hospitals, and other health services. Compare H.M.O.

P.S. Public statute.

P.S.C. Public service commission.

P.S.I. Presentence investigation report (of a defendant’s personal history and background).

P.T.I. 1. Previously taxed income. 2. Pretrial intervention. See diversion. P.U.C. Public Utilities Commission. See Public Service Commission.

P.U.D. Planned unit development.

Package mortgage A mortgage that makes appliances or other listed items part of the security for the repayment of a real estate loan.

Package settlement The total money value of wage and benefit changes in a new union-employer contract.

Packager 1. A broker. 2. An underwriter. 3. A person who puts together deals, such as group travel, a television series, etc.

Packing Trying to get a favorable decision from a jury (or a court, an agency, etc.) by improperly placing specific persons on the jury, court, etc.

Pact A bargain or agreement.

Pactum (Latin) A bargain or agreement. See nudam pactum.

Paid-in Supplied by the owners. For example, paid-in capital is money or property paid to a company for its capital stock, and paid-in surplus is that part of a company’s surplus supplied by the stockholders rather than generated from profits.

Pains and penalties See bill of pains and penalties.

Pairing 1. Two persons (one for and one against a bill in a legislature) agreeing to refrain from voting. This allows them both to be absent for the vote. This is also called “pairing off.” 2. Sending all the children from two school areas to one or the other school by grade.

Pais (French) The countryside; outside the court. For example, a matter “in pais” (see that word) has to do with facts (that happened outside the courtroom), not with law (that is applied to facts inside the courtroom). [pronounce: pay]

Palimony “Alimony” (see that word) paid between persons who are not and never were married. Any payments based on an express or

Paralegal 351

implied contract between two persons who lived together in a sexual relationship. The law as to the validity of these contracts is still changing.

Palm off Sell goods made by one manufacturer as if they are made by another (usually better or more famous) manufacturer.

Palpable Plain, clear, easily seen, or notorious. (The word usually refers to an error, an abuse of authority, or something else wrong.)

Palsgraf doctrine The rule (from Palsgraf v. Long Island R.R., 169 N.E. 99) that a person is responsible for those results of a negligent action that are foreseeable but not for everything that happens to follow.

Pamphlet law A new state law distributed in temporary form before it is published in the state code.

Pandect A country’s complete legal code with history, explanations, and case annotation.

Pander 1. To pimp or solicit for prostitution. 2. Openly advertise obscene material to appeal to erotic interest.

Panel 1. A jury list. 2. A group of judges (smaller than the entire court) that decides a case. 3. “Open panel legal services ” is an arrangement (usually a type of insurance or an employee benefit) that pays in advance for legal representation by a lawyer of a person’s own choice. “Closed panel legal services ” is the same except that representation is provided by a specific group of lawyers.

Paper 1. “The papers” are all the documents connected with a lawsuit.

2. “Paper” may be short for “commercial paper” or a negotiable instrument (see those words). 3. “Paper” may mean “only paper.” For example, a “paper title” is a document of title (see that word) that may or may not be valid; and a “paper profit ” is an increase in value (of an investment) that might be lost again if the value goes down before sale. 4. When a prosecutor “papers” a case, it means, in some places, that it will be formally prosecuted, and, in other places, that it will not be formally prosecuted.

Par 1. Face value. If a hundred dollar bond sells in the bond market for one hundred dollars, it sells “at par.” 2. “Par items ” are things a bank will process and send on without charge to another bank.

Paralegal The American Bar Association restricts the term “paralegal ” to legal assistants with special education, training, or work experience who work under a lawyer’s “ultimate” supervision on “substantive” legal work that the lawyer would otherwise do. Introduction to Paralegalism (Statsky, 1997) also includes those who are “otherwise authorized to use legal skills,” but restricts the tasks performed

352 Parallel citation

to those that do not require all the skills of an attorney. More generally, persons who do law-related work for government agencies and businesses, nonlawyers who represent others before administrative agencies, legal secretaries, and others are sometimes called paralegals.

Parallel citation An alternate reference to a case (or other legal document) that is published in more than one place. There is usually one official publication of a court case or a statute. If so, that is the official or primary citation, and all others are parallel citations.

Parallel jurisdiction See pendent jurisdiction.

Paramount title 1. Best right of ownership. A holder in due course

(see that word) has paramount title to a document (and to all the money or property it stands for). The primary exception is that the original owner has paramount title over even a holder in due course if the document was stolen from the original owner. 2. In real estate law, paramount title previously meant original title, but has come to mean “better” title or “superior” title.

Parcener An old word for a person who, along with another person, inherits property with each person inheriting the whole thing. “Coparcener” means the same thing as “parcener.” A parcener is now usually called a joint heir.

Pardon A president’s or governor’s release of a person from punishment for a crime. Compare with reprieve and commutation.

Parens patriae (Latin) “Country as parent.” Refers to the right of the government to take care of minors and others who cannot legally take care of themselves. The use of this power to deprive a person of freedom has been limited by laws and court decisions. [pronounce: pa- rens pat-ree-i]

Parent corporation A corporation that fully controls or owns another company.

Parental liability and responsibility laws Laws in some states requiring parents to pay for some torts (liability) or pay fines for some crimes (responsibility) committed by their minor children, especially if the child’s actions resulted from a lack of parental control.

Parental rights Such things as the parent’s right to discipline and control a child, to manage the child’s property, to be supported by an adult child, etc.

Pari causa (Latin) With (or by) equal right or equal cause.

Pari delicto (Latin) Equal fault or equal guilt. 1. The “doctrine of pari delicto” in contract law is the principle that a court should not help en-

Parol evidence rule 353

force an illegal or invalid contract except in some cases where one party is much less at fault than the other or has been manipulated by the other. 2. There are several “doctrines of pari delicto” in tort law. One is that in cases of approximately equal mutual fault, the defendant wins. Another is that joint tortfeasors may not get indemnity from each other (but may get contribution). A third is the requirement of clean hands in bringing a lawsuit requesting equitable relief.

Pari materia (Latin) “On the same subject”; interdependent. For example, two laws in pari materia must be read together as if one law.

Pari passu (Latin) Equally; without preference. For example, persons receiving profits pari passu get equal amounts.

Parish The word for “county” in Louisiana.

Parity 1. Equality, equivalence, even-exchangeability. 2. Government price support of farm products based on a comparison with the farmer’s equivalent purchasing power during a prior “base period.” 3. Parity may also refer to proportional job opportunities and fair wages for minorities, to equality of pay between police and firefighters, etc.

Parking Making safe, temporary short-term investments. If this investment involves an agreement to buy back securities at the price sold it may be a sham transaction that violates tax or securities laws.

Parliamentarian A person who advises a legislature or other group about the rules and procedures for holding a legislative or other meeting. These include the rules and customs of the particular meeting plus general rules such as Robert’s Rules.

Parliamentary law Rules, such as Robert’s rules, and customs by which legislatures (and many other types of meetings) are run.

Parliamentary system A government by an elected legislature, from which a prime minister and cabinet are selected by the majority party. This system, based on the one developed in England, does not have the separation of powers between the legislative and executive branches that exists in the U.S.

Parol Oral; not in writing. For example, parol evidence is oral evidence (the evidence a witness gives). It usually refers to evidence about an agreement’s meaning that is not clear from the written contract. See parol evidence rule for a meaning that includes written statements. Not parole.

Parol arrest An “on-the-spot” arrest without a warrant.

Parol evidence rule The principle that the meaning of a written agreement, in which the parties have expressly stated (in a “merger

354 Parole

clause”) that it is their complete and final agreement, cannot be contradicted or changed by using prior oral or written statements or agreements as evidence. Exceptions to the rule include situations in which there was duress, fraud, or mistake.

Parole A release from prison, before a sentence is finished, that depends on the person’s “keeping clean” and doing what he or she is supposed to do while out. If the person fails to meet the conditions of parole, the rest of the sentence must be served. Parole decisions are made by a state or federal parole board or corrections board, and persons out on parole are supervised by parole officers. Compare with probation. Not parol.

Pars (Latin) 1. A party; as in pars rea (party defendant). 2. A part.

Part performance See performance.

Partial average Particular average loss.

Partial disability (or incapacity) An injury that disables a worker from doing part of his or her job or that lowers the value of that person’s labor. The word does not mean the loss of part of an arm, part of the use of an arm, part of the ability to lift things, etc., which are usually called partial losses.

Partial insanity See diminished responsibility doctrine and insanity.

Partial verdict 1. A verdict in which a criminal defendant is found guilty on some counts but not guilty on others. 2. Any verdict in which the jury’s decision is for one side on some counts, and for the other side (or unable to reach a decision) on others.

Particeps criminis (Latin) An accomplice.

Participation 1. An insurance policy in which the person insured pays a certain percentage of any loss. 2. A loan arrangement in which several banks combine to make a large loan. 3. A mortgage agreement in which the lender gets a share of the profits of the venture (in addition to interest on the loan). 4. Short for profit participation (sharing in the profits of a venture).

Particular average loss A loss of property at sea that is the result of negligence or accident and that must be borne by the owner of the property.

Particular lien A right to hold specific property because of a claim against that property; for example, a garage’s right to hold a car until its repair bill is paid.

Particulars 1. The details of a legal claim or of separate items on an account. See also bill of particulars. 2. A detailed description of property to be sold at auction.

Party admission 355

Parties See party.

Partition Dividing land owned by several persons into smaller parcels owned by each person individually.

Partner A member of a partnership (see that word). A “ full” or “general ” partner participates fully in running the company and sharing the profits and losses. A “dormant,” “silent,” or “sleeping” partner is a person who is in a partnership, but is not known as a partner by the public, does not take an active hand in the business, and, if also a “special ” or “limited ” partner, puts in a fixed amount of money, gets a specified amount of profit, and is usually not liable for anything beyond the investment itself. Finally, a “nominal ” or “ostensible” partner is not a partner, but only someone who looks like a partner to an outsider.

Partnership An unincorporated business organization co-owned by two or more persons. Partnerships are usually owned and managed according to a partnership agreement and each partner usually has full liability for all partnership debts. Partnership income and losses are usually allocated among the partners according to their shares, with taxes paid by the partners individually. See also limited partnership, limited liability partnership, and partner. For partnership association, see limited partnership association. See business organization for other organizations set up to make a profit.

Partnership association Limited partnership association.

Party 1. A person concerned with or taking part in any contract, matter, affair, or proceeding. For various types of parties, such as accommodation party, third party, etc., see those words. 2. A person who is either a plaintiff or a defendant in a lawsuit. A real party is a person who actually stands to gain or lose something from being a part of the case, while a formal or nominal party is one who has only a technical or “name only” interest. 3. A person who must be included in a lawsuit, whether or not currently included (an indispensable party, without whom the lawsuit must be dismissed) or who should be included if at all possible (a necessary party, although the term is sometimes used to mean indispensable). 4. A party wall is a wall, on a property line, that is part of the structure of adjoining buildings. 5. A group organized to nominate and elect persons to public office, to influence government policy, etc.

Party admission An out-of-court statement by a party (or a party’s representative) to a lawsuit. A relevant party admission can usually be used by an opposing party as evidence under a hearsay exception.

356 Party of the first part

Party of the first part A wordy and unnecessary phrase used instead of repeating the name of a party to a document. For example, if a contract is between Freeway Motors and John Driver, the contract should use “Freeway Motors,” “Freeway,” or “seller” rather than “party of the first part” (and use “John Driver,” “Driver,” or “buyer” rather than “party of the second part”) each time the names must be repeated.

Pass 1. Say or pronounce. For example, a judge may pass sentence on a convicted defendant. 2. Enact successfully. For example, a bill “passes” when enough members of a legislature vote “yes” on it. 3. Examine and determine. For example, a jury passes upon the issues in a lawsuit. 4. Transfer or become transferred. For example, when a deed is properly written, signed, and delivered, property passes from one person to another. 5. Approve. For example, when account books are examined and determined accurate, they are said to “pass.” 6. Put out, especially to put out fraudulently; for example, “pass” counterfeit money.

Passage Enactment or approval of a bill by one house of a legislature; enactment by both houses; or enactment plus signature by the president or governor.

Passbook A document in which the deposits and withdrawals of savings accounts may be recorded.

Passenger 1. Any rider in, other than the driver of, a motor vehicle. 2. A rider in a vehicle who pays for the ride or a rider whose ride involves some possible financial benefit to the driver.

Passim (Latin) “Here and there”; found in various places; everywhere (indicating a general mention or overall reference to a book or document).

Passion Rage, anger, or terror (not love or lust). See heat of passion. Passive 1. Inactive. 2. Submissive or permissive, rather than actually

agreeing to or participating in something.

Passive trust A dry trust.

Passport 1. A document giving a person his or her country’s permission to travel, and that country’s request that other countries permit the person to pass through safely. 2. A document issued in time of war to give a person or a ship safe conduct.

Past consideration Something of value given, which the giver later calls consideration (see that word) in an attempt to create a valid contract.

Past recollection recorded See recollection.

Patronage 357

Pat. Pend. Short for “patent pending,” a phrase placed on things that may be patentable to give notice that a patent has been applied for.

Patent 1. Open, evident, plainly visible. Compare with latent. For patent defect, compare with latent defect. 2. A grant of a right (given by the federal government to a person) to exclusively control, for a limited number of years (usually seventeen), the manufacture and sale of something that person has discovered or invented. 3. A grant of land by the government to an individual.

Patent and copyright clause The provision of the U.S. Constitution

(Article I, Section 8, Clause 8) that gives Congress the power to promote science and the arts by passing laws, such as the patent and copyright laws, which give creators exclusive rights to their creations for limited time periods.

Patent and Trademark Office A federal agency in the Commerce Department that decides on and keeps track of patent and trademark applications, keeps a complete public reference file, publishes related information, etc.

Patent pooling An agreement among companies (usually manufacturers) to share patent information and rights. It is extensive crosslicensing.

Patentable Able to meet the requirements for securing a patent. For an invention or discovery to be patentable, it must be new and useful, not a mere description of some physical law, and non-obvious in light of prior inventions and discoveries.

Paternity suit A court action to prove that a person is the father of an “illegitimate child” and to get support for the child from the father.

Patient forbearance rule See forbearance.

Patient Self-Determination Act (42 U.S.C. 1395) A 1991 federal law that requires most hospitals to ask patients if they have an advance directive, to post these directives on the patient’s chart, and to advise patients of their right to reject, and sometimes to choose, treatment.

Patient-physician privilege See doctor-patient privilege.

Patrimony 1. All rights and property that have passed or will pass to a person from ancestors (parents, grandparents, etc.). 2. All of a person’s property, rights, and liabilities that can be given a dollar value.

Patronage 1. All the customers of a business; giving a company your business. (A patronage dividend is the refund given to a member of a cooperative based on purchases made from the cooperative.) 2. The privilege of some public officials to give out some jobs at their own discretion, without going through a civil service process. This